Public Citizen's Texas office submitted comments concerning the Texas Supreme Court’s proposed amendments to the Texas Disciplinary Rules of Professional Conduct, issued on April 14, 2010.
We respectfully objected to the proposals identified below. We believe that these rules are against the public’s interest and are anti-consumer and anti-client. We request that the Court reject or withdraw these proposals or revise the proposals consistent with these comments.
1. Proposed Rule 1.04: permitting unreasonable fees.
The proposed amendments to Rule 1.04 have several problems. First, the proposed amendments fail to prohibit “unreasonable” attorney’s fees. Instead, the rule has this convoluted prohibition:
A lawyer shall not … charge … a clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a reasonable lawyer would be left with a firm belief or conviction that the fee is in excess of a reasonable fee.
That rule sounds unduly lawyerly—written by lawyers to protect their own self-interests. It has too many weasel words designed to prevent clients from protecting themselves against unreasonable fees. By contrast, the American Bar Association (ABA) Model Rule is simple and clear—and protects clients. Model Rule 1.5 says that “A lawyer shall not … charge … an unreasonable fee ….” Don’t charge an unreasonable fee. That’s what the rule should say. What’s wrong with the Model Rule language? Do Texas lawyers really want the right to charge “unreasonable fees” without risk of discipline? The Texas Supreme Court should not permit such an outrage.
Second, the proposed rule does not prohibit “unreasonable expenses.” The ABA Model Rule 1.5 does. Lawyers should not be able to bill clients for unreasonable expenses. That should be obvious. Omitting that prohibition invites lawyers to take advantage of clients. The Texas Supreme Court should not extend such an invitation.
Third, the rule permits contingent fees in family law cases. Again, the ABA Model Rule is preferable. Model Rule 1.5(d) says:
A lawyer shall not … charge … any fee in a domestic relations matter, the payment … of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement lieu thereof ….
Neither the current Texas Rules nor the proposed amendments have that prohibition. We should not give lawyers an incentive to destroy marriages for their own profit. (Comment 9 to current Texas Rule 1.04 says that “contingent fee arrangements in domestic relations cases are rarely justified.” So they’re okay—sometimes. Moreover, in Texas violation of a comment is not enforceable by discipline; only violation of a rule is.) We need a rule to halt this potential for abuse. (The ABA rule still permits contingent fees for collection of post-judgment child support arrearages or other financial balances, and that seems to be a better approach.)
Fourth, proposed Rule 1.04(c) says that a lawyer must communicate to a client “any change in the basis or rate of the fee or expense ….” It doesn’t say how. Is it sufficient to change the hourly rate listed on a monthly bill—so that if a client carefully compared one month’s bill to the next month’s bill, the client could discern the change? We submit that the communication should be clear and unequivocal. If a law firm wants to raise its rates, it should have to tell the client—and obtain the client’s consent.
Fifth, proposed Rule 1.04(d)(1) states that a contingent fee contract should be signed “by the client.” It doesn’t require the lawyer to sign the contract. It should. Texas Government Code § 82.065 requires both the lawyer and client to sign a contract. Omitting the lawyer’s signature could create enforceability problems for the client.
2. Proposed Rule 1.01: permitting lawyers to behave incompetently.
Proposed Rule 1.01(a) prohibits a lawyer from representing a client if the lawyer “reasonably should know” that the lawyer is not competent to handle the matter. The proposed change actually adds the word “reasonably”—apparently trying to make it even harder for clients to hold incompetent lawyers accountable. ABA Model Rule 1.1 is simpler, clearer, and omits the qualifiers:
A lawyer shall provide competent representation to a client.
Texans should be entitled to expect their lawyers to behave competently. Forcing a client to argue about the “reasonableness” of the lawyer’s incompetence is unfair. The change is clearly designed to protect lawyers and should be rejected. The Texas Supreme Court should adopt the ABA language.
3. Proposed Rule 1.05: reducing client confidentiality protections.
Proposed changes in this rule appear to lessen the duty of lawyers to protect the confidentiality of client information. Rule 1.05(a)(1) provides no confidentiality protection for information “readily obtainable from sources generally available to the public.” That would include the Internet. Information comes and goes on the Internet—sometimes daily, and sometimes illicitly. Studies also have shown the frequency of “URL decay”—that website citations increasingly become unavailable as more time passes. Thus, information comes and goes on the Internet. Website postings are added and removed. YouTube films appear and disappear. Under this huge confidentiality exception, neither lawyer nor client may know if the information is “confidential.” It may be confidential one day—then not confidential the next day—then confidential again later. Under this definition, it’s impossible for the lawyer and client to know whether information is confidential—or whether it is no longer confidential. Trust is a key element of the attorney-client relationship. This change would undermine that trust and create needless uncertainty. Further, it is unfortunately common for hackers to purloin private information and post it on the Internet. Under this definition, the client would lose confidentiality through no fault of the client. The Texas Supreme Court should not create an Internet-based hacker-friendly defense for lawyers who violate their duty of confidentiality.
The proposed rule also would create a problem for prospective clients. Rule 1.05(a)(2) generally provides that the lawyer must protect information provided “by” the prospective client. The rule does not require protection of information provided “on behalf of” the prospective client. (Several other rules use the phrase “on behalf of.”) Consider a client who already has a lawyer, but wants to hire another lawyer. What if that client asks the current lawyer to communicate “on behalf of” the client to the new prospective lawyer? Or what if the client has a tax problems, and asks her CPA to explain the issue “on her behalf” to the new lawyer? Clearly, the proposed rule’s limitation to information provided “by” the client creates huge gaps in confidentiality protection. The court should not reduce the client’s confidentiality protection in this manner.
The proposed rule appears to be overbroad in allowing a lawyer to disclose client information. Rule 1.05(c)(1) provides that lawyer may disclose or use client confidential information when the client gives “informed consent” or “permits” the disclosure. Those two concepts—informed consent and permission—are very different. “Informed consent” is a defined term under Rule 1.00(k). It requires a lawyer to explain “material risks and reasonably available alternatives to the proposed course of action.” However, “permit” is not defined. Does a lawyer need to tell a client anything before obtaining such “permission”? If so, how is that different from telling the client “material risks,” as required for “informed consent”? Why should a lawyer be able to obtain client “permission” without disclosing “material risks”? And isn’t that sort of disclosure already required by Rule 1.03(b)? That rule requires that a lawyer explain a matter “the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” (Emphasis added.) Shouldn’t the client have the chance to make an “informed decision” concerning whether or not to grant “permission”? We submit that the court should delete the “permission” disclosure provision.
4. Proposed Rules 1.06 and 1.07: conflicts of interest–reducing
the duty of loyalty that lawyers owe clients.
The proposed amendments link these two rules, which cross-reference each other. Both address lawyer conflicts of interest. Together they reduce client protection against lawyers’ conflicts of interest. Clients expect a lawyer to be loyal, and not to sell out a client for another client’s interest or the lawyer’s own interests. The proposed changes undermine the requirement that critical loyalty that clients have a right to expect of their lawyers. The Texas Supreme Court should not erode the lawyer’s duty of loyalty by adopting this change.
To begin with, these two rules are very long and very complicated. They are almost impossible for a non-lawyer client to understand. That makes clients more vulnerable. It also increases the need for the Texas Supreme Court to protect the public against abuse by disloyal lawyers who may want to sell out one client for another or for another fee.
Rule 1.06(a) defines “conflict of interest.” That is an improvement over the 10/09 version of the proposed rules. However, incredibly, Rule 1.06(a) fails to include an express prohibition against a lawyer undertaking conflicted representation. The first sentence of the Model Rule prohibits conflicted representation: it says “… a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” The omission of that prohibition in the proposed Texas version seems incomprehensible. The rule, in paragraph (c), allows representation in the face of a conflict of interest if certain conditions are satisfied. But nowhere does the rule otherwise prohibit conflicted representation.
The imputed disqualification of other lawyers in the firm has been weakened. Proposed Rule 1.06(e) says that if the rule prohibits a lawyer from representing the client because of a conflict of interest under the rule, then “no affiliated lawyer who knows or reasonably should know of the prohibition shall represent that client, unless the prohibition is based on a personal interest of the prohibited lawyer ….” When would it be “reasonable” for a lawyer not to know that another lawyer in his firm has a disqualifying conflict? This provision appears to create an incentive for the other lawyers in the firm not to “know” or learn of the prohibition that applies to their firm colleague. If one lawyer in the firm is prohibited from representing the client, other lawyers in the firm should be responsible for knowing that fact. That’s important information. The prohibited lawyer should have to tell that to other lawyers in the same firm. Knowledge should not be an issue. This proposed change encourages lawyer ignorance, to the detriment of the innocent client.
Additionally, this proposed Rule 1.06 expressly ties into proposed Rule 1.07, and vice versa. They cross-reference each other. Why have two rules? Why not one? (The ABA abolished its prior “intermediary” rule—which was the rule that corresponded to the Texas Rule 1.07.) More fundamentally, why should Texas have a different set of conflict of interest rules from the national standards, the ABA Model Rules? Texas disciplinary authorities already are reluctant to pursue disciplinary complaints (grievances) that raise conflict of interest issues. This new set of even more complicated and more confusing and more lawyer-protectionist rules will further insulate lawyers from disciplinary scrutiny. That ill-serves the public and the legal profession.
Proposed Rule 1.07 has two types of requirements: (1) certain “reasonable beliefs” that the lawyer must have before undertaking representation (Rule 1.07(a)(2)); (2) certain disclosures that the lawyer must make (Rule 1.07(a)(3)).
One of the required reasonable beliefs is that “the clients can agree among themselves to a resolution of any material issue concerning the matter.” (Emphasis added.) How can the lawyer or clients know that in advance of the representation, or in advance of knowing the facts and claims, as disclosed by discovery and pleadings? In many cases and matters, they can’t. This rule creates an unreasonable expectation.
Proposed Rule 1.07(a)(3)(ii) provides that a lawyer must disclose that the lawyer cannot “serve as an advocate for once client … against any of the other clients ….” So far, so good. But then the rule says that “as a consequence,” each client “must be willing to make independent decisions without the lawyer’s advice to resolve issues that arise among the clients concerning the matter ….” That would seem to authorize the lawyer to abandon the clients. Suppose both clients still want the lawyer’s “advice” (but not the advocacy against one another)? Suppose they both want the lawyer’s advice concerning what the basic Texas law is on a point. Why should the rule destroy that right? The rule is a classic nonsequitur.
Rule 1.07(c) also purports to permit other lawyers in the same firm to do what their conflicted colleague cannot do, as long as the other lawyers can show that they should not “reasonably know” about their disqualified colleague. A lawyer’s ignorance about his or her own firm should never be considered “reasonable.” That language just builds in more protection for lawyers.
5. Proposed Rule 1.08: permitting lawyer-client transactions
that the current rule would prohibit.
Proposed Rule 1.08(a) would reduce client protection against exploitation by lawyers in self-interested business transactions. The current rule requires that if a lawyer enters into a business transaction with a client, the transaction must be “fair and reasonable” to the client. The proposed amendment would water down that fair-and-reasonable requirement. Instead, the amended rule adopts the lawyer’s perspective, requiring only that the lawyer “reasonably believe” that the terms are fair and reasonable. Thus, the change would create a new defense for the lawyer: “Yes, the transaction was unfair and unreasonable to my client, but that’s okay because I was ‘reasonable’ in my belief that it was fair and reasonable.” Rule 1.00(q) says “reasonable belief” means “the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.” For example, if a lawyer buys a client’s property for a price 50% under market value, the client loses half of the property value. The transaction is grossly unfair. However, this change would require the client to prove that the lawyer’s belief was not “reasonable” under “the circumstances.” Suppose the client was elderly and unsophisticated and agreed to a price that the client mistakenly believed was fair, based on obsolete historical information and recollection, and the lawyer accepted the client’s number without checking appraised values. Was the lawyer’s belief “fair and reasonable” under the “circumstances” (i.e., one of those circumstances being the lawyer did not research the value independently)? The practical burden imposed on clients by this new standard is substantial. Lawyers are generally more sophisticated in legal and business matters than their clients. Clients tend to trust their lawyers. If a lawyer does business with a client, the deal should be fair and reasonable to the client, period. That’s what the current rule says. There is no good reason to reduce that client protection.
Proposed Rule 1.08(g)(1) and (3) generally addresses lawyer-client agreements limiting or settling client claims and potential claims against the lawyer. Rule 1.08(g)(1) addresses agreements prospectively limiting the lawyer’s liability to a client for malpractice or “other professional misconduct,” and Rule 1.08(g)(3) also addresses settling claims or potential claims for malpractice or “other professional misconduct.” The problem is the phrase “other professional misconduct.” What does that mean? The disciplinary procedure rules define the term. Texas Rule of Disciplinary Procedure 1.06(v) has an eight-part definition of “professional misconduct.” That definition includes rule violations and certain crimes, such as barratry and certain “intentional crimes” and “serious crimes.” Surely Rule 1.08 should not purport to permit a lawyer and client to settle a dispute in a way that would tie the hands of the public disciplinary authorities or a district attorney. That would be against public policy. But if that is not the purpose of using that phrase in this rule amendment, the language needs to be changed.
Proposed Rule 1.08(g)(2) would make it easier for a lawyer to prevent a client from suing the lawyer in court, and, instead, make it easier for a lawyer to force the client into binding arbitration. Forcing consumers into arbitration, and preventing them from going to court, is an all too common abuse. This proposed change apparently seeks to permit lawyers to take advantage of their clients in exactly the same way. The changes are also plainly inconsistent with many of the requirements set out by the Texas Supreme Court’s Professional Ethics Committee in its Opinion No. 586. That opinion, in turn, was similar to the American Bar Association’s Opinion 02-245, issued in 2002. Opinion 586 ruled that a Texas lawyer must not enter an attorney-client engagement agreement that requires binding arbitration unless the lawyer affords the client several protections, including the following:
1. The arbitration clause must not contain "clearly unfair terms." Such unfair terms include: the lawyer alone selects the arbitrator; arbitration is in a "remote" location; or excessive costs "effectively foreclose" arbitration for the client.
2. The client must be aware of all "significant advantages and disadvantages" of arbitration. For an individual or small-business client, the opinion indicated, lawyers should disclose the following:
a. The "cost and time-savings frequently found in arbitration." (But sometimes arbitration is more expensive than going to court because arbitrators charge fees for their time and judges do not.)
b. The waiver of significant rights, such as jury trial.
c. The "possible reduced level of discovery."
d. The "relaxed application" of the rules of evidence.
e. The "loss of the right to a judicial appeal because arbitration decisions can be challenged only on very limited grounds."
3. The opinion also noted that the lawyer might need to make other disclosures that might be important to some clients:
a. The privacy of arbitration versus public trial.
b. The method for selecting arbitrators.
c. The client's obligation to pay arbitration fees/costs.
(Commentators have opined that if a lawyer complied with those requirements and disclosure obligations, few clients would agree to a binding arbitration clause in a lawyer’s contract, apart from sophisticated corporations who regularly arbitrate. For most consumers, arbitration is a bad choice.) Again, this change would help lawyers and take away clients’ rights.
6. Proposed Rule 1.09: former-client conflict.
Proposed Rule 1.09 is another rule that would reduce conflict-of-interest protections for clients. This rule generally addresses the situation of clients who find themselves being sued by their former lawyer or law firm or their former lawyer’s new law firm.
Three provisions of Proposed Rule 1.09 (paragraphs (a)(2), (c)(2), and (e)(2)) incorporate the only-if-the-lawyer-knows escape clause discussed above. Again, those provisions simply encourage a lawyer’s willful ignorance. The Court should reject that approach.
Rule 1.09(d) prohibits a client’s former lawyer from using the client’s information adverse to the disadvantage of the former client, except when the information becomes “generally known or is readily obtainable from sources available to the public.” The exception has the same problem discussed above concerning the same language in Rule 1.05.
7. Proposed Rule 1.13: sex with clients.
Proposed Rule 1.13, the sex-with-clients rule, has multiple problems. First, it prohibits soliciting or accepting sex as “payment of fees.” But it never mentions expenses. Apparently a lawyer may solicit or accept sex for expenses. That would be outrageous. The rule should prohibit and condemn that conduct, not implicitly encourage it.
Second, the rule prohibits, in some circumstances, sex with a client that the lawyer is “personally representing.” Apparently if a lawyer wants to have sex with a client, he or she need only transfer the “personal representation” of the client to a partner or associate or “affiliated” lawyer. “Partner, I want to have sex with Ms. Smith, so I want you to handle her case from here on.” Evading the rule should not be so easy. That makes the rule’s prohibition meaningless—at least unless the lawyer is a solo practitioner.
Third, the rule apparently adopts this standard for lawyers: date first, then represent. The rule would permit a lawyer to have sex with a client as long as the sexual relationship begins before the representation. Imagine a situation in which a client seeks representation from a lawyer. The lawyer is attracted to the prospective client. So the lawyer says, “I’d like to get to know you before I represent you. Let’s have dinner tonight.” That leads to consensual sex. The lawyer has the client sign a contract the next day. According to the rule, that charade would be acceptable.
In many instances, for a lawyer to have sex with a client can create an array of problems. Consider a personal injury case in which the client seeks a damages recovery for “pain and suffering.” In deposition, defense counsel is likely to ask the client about what has caused her pain and what has relieved her pain, what she has been able to do and what she has not been able to do, etc. Her sexual relationship with her lawyer would likely become the subject of direct, extensive questioning—potentially making her lawyer a witness in the case and leading to his disqualification, possibly delaying the case and requiring the client to incur additional expense. Even if the lawyer is not disqualified, how is that lawyer-client sexual subplot going to look and sound in front of a jury? Similar complications can arise in a divorce case when the client and lawyer enter a consensual sexual relationship.
The Texas Rules should contain a strong prohibition against lawyers having sex with client. This rule takes a Swiss Cheese approach—it’s full of loopholes.
8. Proposed Rule 1.17: prospective clients.
Proposed Rule 1.17 sets out certain duties that a lawyer owes to prospective clients. Paragraph (b) states that a lawyer shall not use or disclose confidential information provided by the prospective client, except as provided in Rule 1.05 or (d)(2). Thus, that provision has the same problems discussed above concerning Rule 1.05. That includes both the vague, potentially ever-changing nature of what is “confidential,” and the limitation to only what is provided “by” the prospective client instead of also including what is provided “on behalf of” the prospective client.
Proposed Rule 1.17(d) would permit a lawyer to represent a client with interests materially adverse to those of a prospective client, even if the lawyer already has received the prospective client’s confidential information. The rule, in paragraph (d)(2), would allow this by permitting the lawyer to “condition” the discussion with the prospective client on the prospective client’s “informed consent that no information disclosed during the discussion would be confidential or [would] prohibit the lawyer from representing a different client in the matter.” At first blush, that provision might seem adequately protective. After all, according to the definition of “informed consent,” in Rule 1.00(k), the lawyer would have to explain to the client all “material risks and reasonably available alternatives to the proposed course of conduct.” But does that really make sense? Imagine that a lawyer does that: he tells a client “I would like to condition this discussion with you on your agreement that no information you tell me will be confidential, and that if I don’t take your case, I can take the opposing party’s case and can use your confidential information against you in a manner that is as prejudicial and damaging as possible to your case and your positions in the case. Now you don’t need to agree to that. You have a reasonable alternative. You can just tell me No, that you won’t consent to me potentially injuring you in that manner.” What client in his right mind would give informed consent after being properly cautioned? Given that fact, what’s the point of having the rule? A likely danger would seem to be that lawyers will develop boilerplate forms that purport to have a prospective client acknowledge “informed consent,” and then the client will have the considerable challenge of overcoming the written document to prove that under the circumstances, the client did not give effective informed consent. In short, the risk of abuse from that provision would seem to far outweigh any theoretical, rare possibility of non-abusive use of the rule.
Lastly, the imputation provision in proposed Rule 1.17(c) relies upon the flawed reasonably-should-know concept, once again encouraging lawyers to be ignorant of the representation prohibitions of their colleagues.
9. Proposed Rule 3.05: ex parte agency contacts.
As reported in Texas Lawyer magazine, the proposed change to this rule would overturn the Texas Supreme Court’s Professional Ethics Committee Opinion 587. That opinion made clear that Rule 3.05 restricts secret contacts by lawyers and lobbyists with state agency decision-makers. Specifically, the opinion concluded that Rule 3.05 “imposes strict limits on ex parte communications with an agency's decision maker prior to the filing of a matter with an agency that is expected to act concerning the matter in a dispute resolution, licensing or adjudicatory capacity, if a purpose of the ex parte communication is to influence the agency's decision in the matter.”
This proposed rule change would destroy those “strict limitations.” It would allow lawyers for polluters and other industry representatives to have unrestricted access to key agency personnel at any time before the actual filing of an application with the agency. The proposed rule change would eliminate paragraph (c) of the rule, which defines a matter as “pending” before a tribunal when it is “reasonably foreseeable that that entity will be … selected” to determine the matter.
The potential adverse impacts on the public and consumers from this court’s proposed action on this rule are immense. Lawyers for polluters, electric companies, insurers, and other corporate interests would have free access to those agency deciders to help “grease the skids”—before the public even knows what’s coming.
This would be a bad change and a horrible public policy. We encourage the court to reject this proposed change.
10. Proposed Rule 5.01: absence of managerial responsibility.
Proposed Rule 5.01 addresses when a law firm manager can be disciplined. Basically, it says the manager can be disciplined when he or she “orders, encourages, or knowingly permits” a rule violation by a supervised lawyer, or when the manager knows of a violation and fails to take remedial action. However, the rule has an obvious omission. ABA Model Rule 5.1(a) requires the law firm managers and partners to “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm” comply with the rules. Does Texas not want law firm managers to act “reasonably” so that lawyers in the firm obey ethics rules? Apparently not, if this rule is any indication. Isn’t it better to educate lawyers and prevent violations in advance, rather than focus on after-the-fact “remedial” efforts? (By comparison, current Rule 5.03 requires that a supervising lawyer take such “reasonable efforts” to ensure that nonlawyer staff comply with the rules.) Law firm managers and partners should be held accountable if they unreasonably fail to implement steps to have their supervised lawyers follow the rules. That glaring omission (in both the proposed rule and the current rule) is bad policy, and bad for the image of Texas law firms.
11. Proposed Rule 5.04: fee divisions with nonprofits.
Proposed Rule 5.04 omits any language authorizing a lawyer to share fees with a nonprofit entity. By contrast, ABA Model Rule 5.4(a)(4) permits a lawyer to “share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.” Nonprofit organizations often undertake advocacy projects. Sometimes they retain lawyers to handle litigation and the litigation produces court-awarded legal fees for the lawyer. Why should the lawyer not be able to share such fees with the entity responsible for the lawyer’s involvement? The ABA version permits such sharing. The Texas rules are silent on the issue. However, the rules spend considerable time discussing ways in which lawyers may divide fees among themselves. See Rules 1.04(f) (permitting lawyers in different law firms to divide fees among themselves); 5.04(a)(1)-(2) (permitting lawyers to share fees with the estate of a deceased member of the firm); 5.04(a)(3) (permitting lawyers to include their employees in profit-sharing plans). Proposed Rule 5.04(a)(4) would permit a lawyer to share fees with lawyer referral services—which generally are specialized nonprofit referral services that charge lawyers dues and then receive a share of the lawyers’ fees. A lawyer and any nonprofit entity should be free to do the same thing as those lawyer referral services. These times of economic distress create hardship for nonprofits. This sort of fee sharing is one way to reduce that hardship. One court has even held that banning such fee sharing is unconstitutional. See Rhode Island Training School v. Martinez, 465 F. Supp. 2d 131 (D.R.I. 2006). Texas should follow the ABA Model Rule on this issue.
12. Proposed Rule 1.01(g): permitting boilerplate
emailed “confirmations” of client consents.
Several of the proposed rules incorporate the definition of “confirmed in writing” in Proposed Rule 1.00(g). The definition would permit “a writing that a lawyer … transmits to the person confirming an oral informed consent.” That definition apparently would permit a lawyer simply to send a “confirming” email, merely saying something like this: “This email is to confirm your informed consent to my conflicted representation.” That’s completely uninformative. It seems meaningless. This rule is particularly important because it sets the standard for confirmation of client consent. For example, Rule 1.06(c) permits a lawyer to represent a client even when the lawyer has a conflict of interest, if the client provides “informed consent, confirmed in writing.” Rule 1.00(k) defines “informed consent” as requiring the lawyer to explain to the client or prospective client “the material risks and reasonably available alternatives.” Clients need to know those risks. That warning and explanation are critically important. Rule 1.00(g), or at least the comment to the rule, should specify a clear, explicit communication of that information.
The rules discussed above are one-sided. They protect lawyers and sacrifice the public’s interest. Obviously, one reason for that tilted result is the nature of the rule-making process that the Bar and this Court followed: the rules were written by lawyers for lawyers. The public was excluded from this process for almost seven years. These rules, however, affect clients, prospective clients, and the public as much as they affect lawyers. Protecting the public is or should be a central purpose of these rules. Some of the rules affect the media as well (e.g., Rule 3.07 “Trial Publicity”). The public and the media have important interests that these rules affect and, in the current form, harm. No one can seriously suggest that if the rule-drafting body had included 50% lawyers and 50% public members, that the result would have been the same. A balanced rule-making body would have produced much more balanced rules.
The office of Justice of the Texas Supreme Court is an elected position. Most citizens who vote to select justices for this Court are not lawyers. Thus, the Court should strive to give non-lawyer voters a voice in these important decisions. We therefore suggest that in further rule-making proceedings, the Court (1) permit the public to participate in the process fully, by publicizing the rule-making meetings through PSAs, widely disseminated Internet notices, etc., (and not simply by posting notices on the State Bar’s obscure website), and (2) provide for 50% public membership on the rule-making committee. Additionally, “public” members should be independent of the Bar. The Bar occasionally places a few “public” members on committees, but then carefully selects those “public” members to make sure that they are friends or allies of lawyer members and will not voice independent views. That sort of selection process undermines, rather than upholds, public participation. It is deceptive window-dressing. Our organization would be happy to assist the Court in selecting truly independent, representative public members to participate in the process. We suggest that the Court publicize the revised selection process, and invite nominations from the non-lawyer public for participation on such a rule-making committee.
Most of the proposed changes discussed above should not be called “disciplinary” rules. They should be called “how-lawyers-can-avoid-discipline” rules. The changes appear designed to protect lawyers and to injure consumers and the public. The Texas Supreme Court oversees and controls the profession’s rules and standards. Thus the Court carries the ultimate responsibility to protect Texans against dishonest, unethical, and incompetent lawyers. If the Court approves these rule changes, it will put the public at greater risk of victimization and harm by unethical lawyers. If the Court rejects these changes, it will be protecting both the image of the legal profession and the vital interests of the public.